Construction: Raw evidence in mediation

The California Court of Appeal held that photographs and raw data prepared for or used in connection with mediation were "otherwise admissible evidence" and therefore were not protected from disclosure under the California Evidence Code.

The petitioners were tenants of an apartment complex.

Years before they sued, the building owner filed a lawsuit against the developers, alleging construction defects causing water leakage, toxic mold and other harm. The Case Management Order provided for the matter to be mediated. The litigation settled and the settlement provided that the terms shall remain confidential and that consultants' reports and photographs were not to be disclosed without the owner's prior consent or court order.

In their lawsuit, the petitioners alleged that faulty plumbing and other defects existed in the building, and that the owner and developers had concealed them. Their document production request included documents prepared for or used during the mediation of the owner's dispute with the developers. The petitioners moved to compel document production, arguing that there was no other way for them to obtain the information since the owner had remediated the property. The owner argued that all the documents were protected by the mediation privilege. The judge conducted an in camera inspection and ruled that documents submitted in "compilation form" for the mediation were privileged. When the case was reassigned to another judge, the petitioners moved to compel production of physical evidence, including photographs, videotapes, and test data prepared for the mediation. They argued that the changed conditions, and their inability to replicate the raw data and photographs, constituted good cause to require the material to be produced. They also contended that mold spore analyses did not constitute expert opinion, and that photos did not contain attorney work product.

Although the judge was troubled about applying the mediation privilege to raw evidence, it seems he nevertheless did apply it. The petitioners sought a writ from the appeals court to order production of this evidence.

The Court of Appeal held that the statutory mediation privilege in Evidence Code Section 1119 did not shield physical evidence from discovery because that type of evidence was "otherwise admissible" under Section 1120. The court held that Sections 1119 and 1120 were clear and unambiguous. Section 1119 did not apply to "evidence," but only to oral or written statements and "writings." The court reasoned that if Section 1119 were meant to protect all evidence, it would not specifically define the particularized types of evidence (oral and written) it did protect. Moreover, it concluded that interpreting Sections It 19 and 1120 to encompass within the mediation privilege purely evidentiary materials introduced at or prepared for mediation would render Section 1120 unnecessary and foster the evils it was designed to prevent-using mediation as a shield for otherwise admissible evidence.

Rojas v. Los Angeles County Superior Court, 126 Cal. Rptr. 2d 97 (Cal. Ct. App. 2d Dist. 2002).